Monday, 30 January 2017

The UK Brexits Euratom: Legal Framework and Future Developments

Professor Steve Peers

The UK government’s draft
bill on triggering Article 50 TEU, the EU withdrawal clause (the ‘Article
50 Bill’) had a surprise for some. Tucked away in the explanatory memorandum of
the bill was a note explaining that the UK intended not only to leave the EU
but also the separate (but linked) European Atomic Energy Community – Euratom for
short.

Many are concerned that this will
have a negative impact on the UK energy industry and related research. In
particular, as discussed here,
it raises issues as regards safety checks, the ownership of nuclear material,
the processing of fuel, and fusion research. While it is obviously possible for
a non-EU country to have a nuclear power industry, walking away from the Euratom
cooperation framework will create complications for a state which is
already in it.

Some have even questioned if the
UK actually has to leave Euratom just because it is leaving the EU. However, in
practice leaving Euratom is an inevitable consequence of Brexit. This blog post
explains why – and points to the way forward to continue UK/EU cooperation in
this field after Brexit.

Legal Framework

The Euratom treaty
is a separate treaty from the treaty which initially created what was the
European Economic Community (EEC) – now known as the European Union (EU).
Equally, Euratom is a separate international organisation from the EU. But
there have always been close links between the two. The founding treaties were
negotiated together, and they have always had the same membership. They shared
some institutions from the outset in 1958, and all institutions from 1967, when
the ‘Merger
Treaty’ brought together the separate Councils and Commissions which the three
Communities (the EEC, Euratom and the European Coal and Steel Community) had
until then.

Since that point, the provisions
on the institutions in the Euratom Treaty have been updated every time the
corresponding rules in the EEC Treaty were amended. Those institutional rules
are now split between the Treaty
on the Functioning of the European Union (TFEU) – as the EEC Treaty is now
called – and the Treaty
on European Union (TEU). The link between the latter two treaties, which
are the legal basis for the EU, and the Euratom Treaty, is now set out in
Article 106a of the Euratom Treaty, which was inserted by the Treaty of Lisbon:

1. Article
7, Articles 13 to 19, Article 48(2) to (5), and Articles 49 and 50 of the
Treaty on European Union, and Article 15, Articles 223 to 236, Articles 237 to
244, Article 245, Articles 246 to 270, Article 272, 273 and 274, Articles 277
to 281, Articles 285 to 304, Articles 310 to 320, Articles 322 to 325 and
Articles 336, 342 and 344 of the Treaty on the Functioning of the European
Union, and the Protocol on Transitional Provisions, shall apply to this Treaty.

As you can see, Article 50 of the
TEU applies to the Euratom Treaty. That could be interpreted one of two ways.
First of all, it could mean that a Member State is free to leave the EU but not Euratom (or the other way around),
if it chooses. Article 50 is the exit route for leaving either body separately, or both of them together, as that Member
State desires. Alternatively, it could mean that if a Member State wants to
leave the EU, it must also leave
Euratom.

Which view is correct? In my
view, the answer is clear if Article 106a is read as a whole. For it does not
only refer to Article 50 TEU, but also to ten other Articles in the TEU, and 85
Articles in the TFEU. A large number of these Articles refer to the EU
institutions. For instance, Article 13 TEU describes the institutional
framework as a whole; Article 14 sets out the basic rules on the European Parliament;
Article 15 the European Council; Article 16 the Council; Article 17 the Commission;
Article 18 the Foreign Policy High Representative; and Article 19 the EU Court.
Equally, the TFEU Articles which apply to the Euratom Treaty make up most of
Part Six of the TFEU (Articles 223-334 of that Treaty), which is the ‘Institutional
and Financial Provisions’. They go into more detail about issues like
determining the number of Members of the European Parliament and the
jurisdiction of the EU courts.

In practical terms, this would
mean that if the UK left the EU but not Euratom, it would still have Members of the European Parliament, a Commissioner, a
role on the Council, judges on the EU courts, and so on. From a legal
perspective, it’s hard to believe this odd scenario was intended by the drafters
of the Treaties; from a political perspective, this prospect would surely
dismay those who voted to Leave.

This could be addressed if the Euratom Treaty were amended to suit the
UK’s intention (if it wished) to stay in Euratom but not the EU, but without
such institutional complications. But it’s hard to imagine the remaining Member
States being willing to do that. So the best interpretation of the current law
is that a Member State must also leave Euratom if it wants to leave the EU. And
even if that legal interpretation is wrong, the UK government would want to leave the two bodies at the same
time, to avoid continued participation in those EU institutions that give Leave
voters such graphic nightmares.

The post-Brexit scenario

The Article 50 agreement between
the UK and the EU can address the details of ending the UK’s participation in
Euratom, which could perhaps wind down over several years after Brexit Day. But
what if the UK wanted to continue with some or all of its current participation
in Euratom?

This would still be possible (if
the remaining EU also agreed to it). There are two main means by which Euratom
enters into treaties with non-EU countries. Article 101 of the Euratom Treaty
says that the Euratom Community (as legally distinct from its Member States)
may enter into ‘agreements’ with non-Euratom countries. Article 206 of the same
Treaty says that Euratom may enter into association agreements.

A list of such treaties, with
links to the texts, can be found here.
In addition to general association agreements between non-EU countries and the
EU and Euratom, there are several
treaties just on atomic energy cooperation. These are with Switzerland, South
Africa, India, Korea, and the United States.

The best course forward is
therefore for the UK to seek to negotiate such a treaty. Since it might take
some time to negotiate, it’s best for the government to consult as soon as
possible widely and openly with the industry and research community, as well as
groups concerned about nuclear safety, to determine what its objectives should
be in these negotiations.

* Further reading: for a more
detailed overview of the legal framework of Euratom, with references to further
literature, see pages 66-73 of my article
on EU Treaty Amendments, published in the Yearbook
of European Law.

4 comments:

Also, the reference to "EU" in the bill is shorthand, as we know, for the EU + Euratom. Had it said only "European Union", arguably that would not have included Euratom. But it would have been more accurate because no one knew we were leaving Euratom when we crossed the box on the ballot paper. Talking of which, did we all vote to leave the EEA as well? The Bill is silent on that not least because there is no mandate.

I wouldn't call it "shorthand" because it has the same legal meaning as other UK law, ie referring to Euratom also. The referendum was in no way a vote on the EEA and the Bill does not cover withdrawal from it explicitly.